Labour Codes: Occupational Safety, Health & Working Conditions Code, 2020 Implications & Impact on Employers & Employees –
Labour Codes: Occupational Safety,
Health & Working Conditions Code, 2020
Implications & Impact on
Employers & Employees –
The Constitution of India provides for the democratic function of the Govt. of India. It is a machinery
by which laws are made. It provides detailed provisions for the rights of the citizens and also
lays down the Directive Principles of State Policy which inter alia provides for securing social order
for welfare of people, just & humane conditions of work & etc. The Government
is committed to regulate all economic activities for management of safety and
health risks at workplaces and to provide measures so as to ensure safe and
healthy working conditions for every working man and woman in the nation. It recognizes
that safety and health of workers has a positive impact on productivity and
economic and social development. The second National Commission on Labour, in
its report in June 2022, had recommended that the existing set of Labour laws
should be broadly amalgamated into industrial relations; wages, social
security, safety and welfare and working conditions.
The
Occupational Safety, Health & Working Conditions Code, 2020 (OSHWC)
OSHWC consolidates and amend the laws
regulating the occupational safety health and working conditions of the persons
employed in an establishment and the matters connected. The definition of
“establishment” has a wide coverage of any place where any industry, trade, business,
manufacturing or occupation is carried out in which 10 or more workers are
employed
The
following Acts are consolidated in to OSHWC.
1. The Factories Act, 1948
2. The Plantations Labour Act, 1951
3. The Mines Act, 1952
4. The Working Journalist and other Newspaper
Employees (Conditions of Service and Miscellaneous Provision) Act, 1955
5. The Working Journalist (Fixation of
rates of wages) Act, 1958
6. The Motor Transport Workers Act,
1961
7. The Beedi and Cigar Workers
(Conditions of Employment) Act, 1966
8. The Contract Labour (Regulation and
Abolition) Act, 1970
9. The Sales Promotion Employees
(Conditions of Service) Act, 1976
10. The Cine Workers and Cinema Theatre
Workers Act, 1981
11. The Dock Workers (Safety, Health and
Welfare) Act, 1986
12. The Building & Other
Construction Workers (Regulation of Employment and Conditions of Service) Act,
1996
13. The Inter-State Migrant Workmen
(Regulation of Employment and Conditions of Service) Act, 1979
The EFI conducted a special
webinar titled, Safety, Self-Reliance and Risk Mitigation, as an interactive
awareness session, high lighting the key aspects of the OSHWC Code, on 6th
May, 2022. This article focus on the essential provisions of this Code and how
to maximise Governance. Prevention is an integral part of economic
activities as high safety and health standard at work is as important as good
business performance for new as well as existing industries.
Key Definitions (short)
Employee – covers
all categories including managerial
Employer –
covers all employment, direct, indirect, or through other person…
Establishment - a place where any industry, trade, business, manufacturing or
occupation is carried on, in which ten or more workers are employed…
Factory – covers
twenty or more workers …….
Hazardous process - any process or activity in relation
to an industry or plantation ……
(i) cause material impairment to the
health of the persons engaged in or connected
therewith, or
(ii) result in the pollution of the
general environment
Industrial premises - …in which or in any part of which any industry, trade, business,
occupation or manufacturing is being ordinarily carried on with or without the
aid of power and includes a go-down attached thereto
Occupier –
the person who has ultimate control over the affairs of the factory…
Principal employer –
►
in a factory, the owner or occupier of the
factory and where a person has been named as the manager of the factory, the
person so named;
►
in
a mine, the owner or agent of the mine;
►
in
relation to any other establishment, any person responsible for the supervision
and control of the establishment…
Producer -
in relation to audio-visual production, means the company, firm or other person
by whom the arrangements necessary for producing such audio-visual (including
the raising of finances and engaging audio-visual workers for producing
audio-visual) are undertaken.
Duties of Employer
ensure
that workplace is free from hazards which cause or are likely to cause injury
or occupational disease to the employees;
comply
with the OSH standards …….under this Code;
provide
such annual health examination or test free of costs…..
provide
and maintain, as far as is reasonably practicable, a working environment that
is safe and without risk to the health of the employees;
ensure
the disposal of hazardous and toxic waste including disposal of e-waste;
ensure that no charge is levied on any
employee, …….
The
Employer of construction work or
plantation, ensure and be responsible for the safety and health of employees,
workers and other persons who are on the work premises of the employer, with or
without his knowledge, as the case may be.
Duties of Designers, manufacturers, Importers
or suppliers
The Code has extensive coverage of the industry, including Designers,
Manufacturers, and Importers & Suppliers and cast certain duties for these
categories, viz.
ensure,
so far as is reasonably practicable, that the article is so designed and
constructed in the establishment as to be safe and without risk to the health
of the workers when properly used;
carry
out or arrange for the carrying out of such tests and examination in the
establishment as may be considered necessary for the effective implementation
of the provisions of clause (a);
take
steps as may be necessary to ensure that adequate information will be
available—
o
in
connection with the use of the article in any establishment;
o
about
the use for which such article is designed and tested; and
o
about
any conditions necessary to ensure that the article, when put to such use,
shall be safe, and without risk to the health of the workers
Notice
of certain accident by Employer
Section of 10 of the code mandates notification
of an accident which causes death, or which causes any bodily injury by reason
of which the person injured is prevented from working for a period of
forty-eight hours or more immediately following the accident or, by the
Employer. This provision also empowers the
authority to make an inquiry into the occurrence within 2 months.
Notice of certain
Dangerous occurrences
Section 11 provides that in the event of any dangerous occurrence of such nature, (whether causing any bodily
injury or disability, or not) the employer shall send notice thereof to such
authorities, and in such form and within such time, as may be prescribed by the
appropriate Government.
Duties of Employees:
The Code
also casts certain duties on the Employees, viz., take reasonable care for the
health and safety of himself and of other persons who may be affected by his
acts or omissions at the workplace;
comply
with the safety and health requirements specified in the standards;
cooperate
with the employer in meeting the statutory obligations of the employer under
this Code;
if
any situation which is unsafe or unhealthy comes to his attention, as soon as practicable,
report such situation to his employer or to the health and safety
representative ……..
not
wilfully interfere with or misuse or neglect any appliance, convenience or
other thing provided at workplace for the purpose of securing the health, safety
and welfare of workers;
not
do, wilfully and without reasonable cause, anything, likely to endanger himself
or others; and
perform
such other duties as may be prescribed by the appropriate Government.
Right
to obtain from the employer information relating to employee's health and
safety at work and represent to the employer directly or through a member of
the Safety Committee….. regarding inadequate provision for protection of his
safety or health in connection with the work activity in the workplace, and if
not satisfied, to the Inspector-cum-Facilitator.
Where
the employee has reasonable apprehension that there is a likelihood of imminent
serious personal injury or death or imminent danger to health, he may bring the
same to the notice of his employer directly or through a member of the Safety
Committee ….and simultaneously bring the same to the notice of the
Inspector-cum-Facilitator.
Shall
take immediate remedial action if he is satisfied about the existence of such
imminent danger and send a report forthwith of the action taken to the
Inspector-cum-Facilitator in such manner as may be prescribed by the
appropriate Government.
If
the employer….. is not satisfied about the existence of any imminent danger as
apprehended by his employees, he shall, nevertheless, refer the matter
forthwith to the Inspector-cum-Facilitator whose decision on the question of
the existence of such imminent danger shall be final.
Duty
not to interfere with or misuse things
The Code also casts an obligation on the employee not to intentionally or recklessly
interfere with, damage or misuse anything which is provided in the interest of
health, safety or welfare and in particular the Standards notified.
Standards
physical,
chemical, biological and any other hazards to be dealt with for the working
life of employee to ensure to the extent feasible on the basis of the best
available evidence or functional capacity, that no employee will suffer
material impairment of health or functional capacity even if such employee has
regular exposure to such hazards;
the
norms—
o
appraising
the hazards to employees and users to whom such hazards are exposed;
o
relating
to relevant symptoms and appropriate energy treatment and proper conditions and
precautions of safe use or exposure;
for
monitoring and measuring exposure of employees to hazards;
for
medical examination and other tests which shall be made available, by the
employer or at his cost, to the employees exposed to hazards; and
for
hazard evaluation procedures like safety audit, hazard and operability study,
fault free analysis, event free analysis and such other requirements
Safety:
Committee & Officers
In every establishment which is a—
(a)
factory wherein five hundred workers or more; or
(b) factory
carrying on hazardous process wherein two hundred fifty workers
or more; or
(c)
building or other construction work wherein two hundred fifty workers or more;
or
(d) mine
wherein one hundred workers or more, are ordinarily employed, the
employer shall also appoint such number of safety officers, who shall possess
such qualifications and perform such duties, as may be prescribed by
appropriate Government.
Health,
Safety & Working Conditions
(i)
cleanliness and hygiene;
(ii)
ventilation, temperature and humidity;
(iii) environment
free from dust, noxious gas, fumes and other impurities;
(iv)
adequate standard of humidification, artificially increasing the humidity of
the air, ventilation and cooling of the air in work rooms;
(v) potable
drinking water;
(vi)
adequate standards to prevent overcrowding and to provide sufficient space to
employees or other persons, as the case may be, employed therein;
(vii)
adequate lighting;
(viii)
sufficient arrangement for latrine and urinal accommodation to male, female and
transgender employee separately and maintaining hygiene therein;
(ix)
effective arrangements for treatment of wastes and effluents; and (x) any other
arrangement which the Central Government considers appropriate
Compoundable Offences
The
provisions of the Labour Codes, in general, provide for compounding of the
first offence (provided that the such
offence requires only fine, or
imprisonment up-to One Year)
►
The
1st offence can be compounded by 50% fine payment.
►
For recurrence within 5 years, no option
provided for compounding and prosecution shall be initiated.
The Rate of
fine varies from 50,000 to 25 Lacs (IR Code being the highest of penalties)
Opportunity
before Prosecution.
The provisions of Section
110 require an
opportunity to be given to the employer for complying with the relevant
provisions before initiating prosecution proceedings against them. If the
employer complies with such provisions within the specified duration, then no
criminal proceedings will be initiated against them. In the event of
Accident, No such opportunity shall be accorded
However, no opportunity will not be provided to
the employer, in case of an accident, and if a violation of the same nature of
such provisions is committed by the employer, within 3 years of the date of
commission of the first violation
Occupier: Definition – Section 2 (zs)
"occupier"
of a factory means the person who has ultimate control over the affairs of the
factory:
(i) in the
case of a firm or other association of individuals, any one of the individual
partners or members thereof
(ii) in the
case of a company, any one of the directors, except any independent
director within the meaning of subsection (6) of section 149 of the Companies
Act, 2013"
any one of
the above persons shall be deemed to be the occupier,
The employer or the principal employer of
the establishment, as the case may be, shall be liable to penalty which
shall not be less than Rs.2 Lakhs but
which may extend up to Rs.3 Lakhs and if the contravention is continued
after the conviction, then, with further penalty which may extend to Rs.2,000/day
till such contravention continues.
Opportunity
to comply:
The Employer
to get a 30 days’ notice before initiating of proceedings, by way of a notice from
the Inspector /Facilitator , but it is not applicable in case of an accident
and if the violation of the same nature is repeated within a period of three
years from the date on which such
first violation was committed and in such case the prosecution shall be
initiate. Complaint of prosecution to be filed before the competent Court
within 6 months of the date on which the alleged commission of the offence came
to the knowledge of the Inspector-cum-Facilitator.
Jurisdiction of Courts
The place
where the establishment is for the time being situated, shall be deemed to be
the place where such offence has been committed
Power
of Court
FACTORY/MINE: the court may, in addition to awarding any
punishment, require within the period specified in the order (which may be
extended by the court from time to time on application made in this behalf) to
take such measures as may be specified in the order for remedying the matters
in respect of which the offence was committed. Where an order is made , the
employer shall not be liable… during the period or extended period, if any, but
if on the expiry of such period or extended period the order of the court has
not been fully complied with, employer shall be deemed to have committed a
further offence and shall be punishable with imprisonment for a term which may
extend to six months, or with fine which may extend to one hundred rupees for
every day after such expiry on which the order has not been complied with, or with
both.
Kerala High Court –
Liability of any Director, when the “occupier” for a factory is not notified
The Supreme Court, while dealing with appeals/petitions on fatal
accidents has taken a stern and consistent view. In a recent case of an
employer (Sabu M Jacob vs. State of Kerala & Anr, Special Leave to Appeal
No.(Crl.) 74/2022, affirmed that “ we are not inclined to entertain the Special
Leave Petition” and accordingly dismissed the case. This Appeal arose out of the judgement of the
Kerala High Court, wherein, inter alia, upholding the deeming provision of the
Occupier under Section 2 (n) under the Factories Act was challenged. It is pertinent to cite the relevant portion
of the Judgement, as below:
“… it is true that the principles of vicarious liability is alien to
criminal jurisdiction, under normal circumstances. However, when the statute
prescribes culpability upon a specific person, on the basis of the position he
is holding on the institution, there is no illegality in holding liable of such
person for the offence alleged. In this case, by virtue of deeming provision
contained under Section, 2(n) of the Act, any of the directors of the company
can be treated as occupier of the company and in the absence of any other
materials indicating nomination or intimation of the occupier the petitioner
(the Managing Director,) can be prosecuted by treating him as the occupier of
the Company, on the strength of the deeming provision..”
Therefore, it is inevitable for any Company to ensure valid nomination
for every factory (even for establishments, when the effective date of
implementation of the Code is notified) of Occupier and establish a methodical
process to ensure that each factory/establishment maintains all standards and
process as applicable under the Code and the relevant Rules in force.
Global
Scenario
Globally, an estimated 2.9 million deaths and 402 million non-fatal
injuries are attributed to occupational accidents and diseases Occupational
accidents and diseases cost 5.4% of the global GDP annually.
A scientific article
published in the National Medical Journal of India, 2016, indicates prevalence
of occupational diseases such as silicosis and byssinosis. Byssinosis is a
disease of the lungs caused by breathing in cotton dust or dust from other
vegetable fibres such as flax, hemp, or sisal while at work.
Under-utilized
Reporting Systems: A reliable occupational accident and disease reporting
system is vital for remedying victims and making effective prevention policies
for safer and healthier workplaces. While India has such a mechanism, it is
underutilized, with many injuries, accidents, and diseases going unregistered.
Effective
implementation of the code of OSH and working conditions of 2020 will extend
OSH protection to more sectors, especially to informal workers who make up
nearly 90% of India's workforce.
At the national
level, the government needs to include all relevant ministries to ensure that
workers' safety and health are prioritized in the national agenda.
At the state level,
workers' and employers' organizations, by way of bilateral discussions, must
incorporate safety and health training at every level of their supply chains to
ensure protection from workplace injuries and diseases.
Emerging
Risks – E Bikes
Necessity is the Mother of Inventions”-it
equally brings new risks to the fore. Taking cognizance of repeated incidents
of electric two-wheelers catching fire, Union Transport Minister Nitin Gadkari
said the government will announce 'quality-centric' guidelines for manufacturers
of electric vehicles (EVs) while also warning them of heavy penalties in case
of negligence.
The Ministry of Road Transport and Highways
(MoRTH) had constituted an expert committee to examine EV manufacturing issues,
especially those related to two-wheelers, and make recommendations to be added
to the upcoming guidelines.
Health & Safety are an integral part of
lives and one can’t isolate this risk, as that of only the E-bike users. Such
emerging risks be it of two wheelers or of any motor vehicle or even devices
should be approached holistic by the Government and the Industry. For instance,
the E-bike risk is equally a concern for the industry, from the point of
employees’ safety and also the fact that such vehicles, which may be parked at
the employers’ premises may be a potential danger for the whole premises.
This is my article, published on the EFI Blog. Vasudevan
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